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PAGE 18 authorities. If s. 128(4) violated ss. 7, 9 or 15 it was a reasonable limit by law that could be demonstrably justified in accordance with s. 1 of the Charter. Capra v. Canada (Attorney Gen- eral) (Oct. 29, 2008, F.C., Russell J., File No. T-1049-08) Order No. 008/315/063 (41 pp.). ONTARIO CIVIL CASES Assessment ASSESSABILITY Application judge correctly held that land severed in 2000 was "eli- gible property" for 2001 taxation year within meaning of s. 447.70 of Municipal Act, 2001 (Ont.). Severance that occurred in 2000 was within contemplation of leg- islature when it enacted amended definition of "eligible properties" in 2001, effective January 1, 2001. 1392290 Ontario Ltd. v. Ajax (Town) (Oct. 24, 2008, Ont. S.C.J. (Div. Ct.), Then R.S.J., Lederman and Karakatsanis JJ., File No. 565/07) Appeal from 161 A.C.W.S. (3d) 363, 40 M.P.L.R. (4th) 286 dismissed. Order No. 008/302/195 (6 pp.). Building Liens ACTION Defendant denied plaintiff access to work site without justification Plaintiff commenced construction lien claim and action for $51,358 respecting contract for supply of labour, services and material re- lating to fire repair work and res- toration at defendant's residence. While aspects of plaintiff's roofing sub-trade were deficient, entirety of work was not so defective as to go to root of contract such as to amount to fundamental breach by plaintiff. Without justifiable cause, defendant denied plaintiff access to work site and opportunity for plaintiff to complete contract. Al- though defendant may be entitled to set-off for roof work which was defective, in absence of fun- damental breach by plaintiff, she was obliged in mitigation of her damages to provide plaintiff rea- sonable opportunity to correct its own work. Plaintiff was entitled to recovery of damages against defen- dant in amount of $39,297. C.S. Bachly Builders Ltd. v. Lajlo (Oct. 28, 2008, Ont. S.C.J., Hill J., File No. 04-CV-1823) Order No. 008/318/017 (51 pp.). Civil Procedure COSTS Successful party in family law case awarded costs Parties to child custody and sup- port case consented to order grant- ing applicant custody of child with access to respondent. Same order provided for child support and respondent's contribution to day- care fees. When dispute arose on day-care cost respondent stopped making contribution. Applicant brought motion for change in child support order while respon- dent sought variation in access and decrease in child support. Parties signed consent resolving all issues except costs. Respondent ordered to pay costs. Rule 24 of Family Law Rules (Ont.), laid down pre- sumption that successful party was entitled to costs. Applicant was successful party as she received in- creases in child support and contri- butions to day-care cost and retro- active award. Final access order was also consistent with her position. On other hand unreasonable be- haviour of respondent in stopping contributions rendered litigation necessary. Support issues in litiga- tion could have been settled soon- er had respondent been willing to accept that increase in child sup- port and retroactive award were justified. After finding 18 to 20 hours work of applicant's counsel as reasonable basis for computa- tion, court ordered respondent to pay applicant costs of $6,265 in- clusive of GST. Valenzuela v. Eastman (Oct. 1, 2008, Ont. C.J., Murray J., File No. D643/99-A-B2) Order No. 008/316/093 (8 pp.). DISCOVERY Bald allegation of bad faith did not justify order for disclosure Action resulted from applica- tion to township for rezoning of agricultural property to permit establishment of single detached dwelling on property and when rezoning application was reject- ed, appeal to Ontario Municipal Board which resulted in Minutes of Settlement and township sub- sequently passing by-law dealing with zoning application. master erred in ordering appellant to an- swer on discovery questions as to how staff and municipal council members handled plaintiff's appli- cation for rezoning and how they reached their decision. No fair or reasonably solid foundation was provided by pleadings that would mandate production of opinions and personal records of staff mem- bers and councillors. Bald allega- tion of bad faith did not suffice to justify order for disclosure. A's and R's Trading Ltd. v. Ux- bridge (Township) (Oct. 20, 2008, Ont. S.C.J., Chapnik J., File No. 06-CV-320026PD1) Ap- peal from 169 A.C.W.S. (3d) 742 was allowed in part. Order No. 008/297/003 (6 pp.). PLEADINGS Issues sufficiently related that they could not be tried at different times Defendants brought application for order to bifurcate trial so that liability would have been dealt with first followed by trial at later date on issue of damages. Action arose from single vehicle motor ac- cident. Plaintiffs' contended that driver's injuries had resulted from failure of driver's side air bag to deploy. Motion dismissed. Issues of liability and damages overlap. They required consideration of same evidence as to what caused driver's injuries and had to be tried by same jury. Delay between two separate trials of liability and dam- ages would have made resolution of both issues by same jury im- practical or impossible. Issues were sufficiently related that they could not be tried at different times. Bailey (Litigation Guardian of) v. DaimlerChrysler Canada Inc. (Oct. 9, 2008, Ont. S.C.J., Mas- ter Graham, File No. 04-CV- 268008CM2) Order No. 008/288/112 (12 pp.). WANT OF PROSECUTION Action for long-term disability benefits was properly dismissed Master did not err in law in dis- missing action for long-term dis- ability benefits at status hearing. Master found sufficient explana- tion for delay between filing of CASELAW defence to in or about August 2005. Master found no satisfac- tory explanation for delay com- mencing September 7, 2005, when appellant settled case with his employer, to December 2006, when appellant responded to sta- tus notice. Master drew adverse inference from lack of disclosure of medical records and found actual prejudice to defendant as result of nature of case being long-term dis- ability claim. Since appellant had not filed application for long-term disability with supporting medical evidence with insurer, insurer had no opportunity to investigate ap- pellant's claim. No evidence that master committed palpable and overriding error. Savundranayagam v. Sun Life As- surance Co. (Oct. 27, 2008, Ont. S.C.J. (Div. Ct.), Carnwath J., File No. 623/07) Appeal from 163 A.C.W.S. (3d) 229, 56 C.C.L.I. (4th) 154 dismissed. Order No. 008/302/192 (5 pp.). Corporations OPPRESSION Judge erred in finding that sentence in shareholders agreement was an unenforceable penalty clause Application judge correctly found that D. was entitled to conduct forced buy-out of N.'s shares, the Dr. M. was in breach of share- holders agreement for failing to resign, that D. was entitled to re- cover provable damages for breach and that there was no oppression within meaning of Business Cor- porations Act (Ont.). Application judge erred, however, in finding that last sentence of s. 21(d) of shareholders agreement was un- enforceable penalty clause. Dr. M. produced no evidence to prove that s. was penalty or that it should be unenforceable. He also failed to prove either that reduction in pur- chase price required by s. 21(d) did not represent genuine pre-estimate of damages or that its enforcement would be unconscionable. Mascia v. Dixie X-Ray Associ- ates Ltd. (Nov. 17, 2008, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Carnwath and Bel- lamy JJ., File No. 211-08) Appeal from 165 A.C.W.S. (3d) 1034 al- lowed. Order No. 008/323/310 (7 pp.). Courts JURISDICTION Insurance action lacked real and substantial connection to Ontario Defendants requested order to stay plaintiffs' action against them on ground that it should have been brought in Quebec as matter and parties did not have real or sub- stantial connection to Ontario. Plaintiffs brought application for unspecified damages for lapse of their umbrella liability coverage for period of October 13, 2002 to March 24, 2005. Plaintiffs' al- leged that defendants collected insurance premiums for them and misrepresented to them that they were insured for umbrella liabil- ity coverage when they were not. Proceedings stayed. Quebec was convenient forum. Return of pre- miums paid by defendants did not show that they consented or sub- mitted to jurisdiction of Ontario Courts. Action lacked necessary real and substantial connection to Ontario. There was no connection between Ontario and parties. It would have been unfair to defen- dants for trial to be conducted in www.lawtimesnews.com Ontario, as their business opera- tions would have been disrupted. There was no evidence that it would have been unfair to plain- tiffs if Ontario declined to assume jurisdiction. Majority of witnesses were all located in Quebec. Dis- pute and factual matters arose and bulk of evidence was in Quebec. 1092072 Ontario Inc. v. Gcan Insurance Co. (Oct. 10, 2008, Ont. S.C.J., McWatt J., File No. 06-CV-317664PD2) Order No. 008/288/113 (10 pp.). Damages PERSONAL INJURIES Plaintiff awarded general and punitive damages for assault Plaintiff was victim of swarm- ing attack by defendants. Matter was not defended. Plaintiff ex- perienced broken nose, removal of his right testicle, lacerations to his head and face and dizziness secondary to concussion. Plaintiff continued to experience pain in his head for three years, pain in his arm continued for two years and pain to his groin had not ceased. Plaintiff was likely to never have children. Plaintiff was awarded general damages of $200,000 plus prejudgment interest at five percent, punitive damages of $50,000. Plaintiff's injuries called for substantial award of damages. Award for punitive damages was required to properly denounce and deter behaviour in this case. Leskovar v. Braithwaite (Oct. 15, 2008, Ont. S.C.J., Tulloch J., File No. 02-BN-8171) Order No. 008/294/033 (15 pp.). Employment EMPLOYMENT STANDARDS Employee entitled to nominal damages for non-payment of overtime Action by employee for damages for non-payment of overtime. Action allowed. Plaintiff was awarded nominal damages of $1.00. Employee experienced some loss, but was unable to quantify it. Employer breached its statutory duty to keep proper records of overtime worked and failed to pay plaintiff for his over- time within time-limits statutori- ly prescribed. However, evidence of employee as to hours of over- time he worked was not reliable. Matiowski v. Lake of the Woods Business Incentive Corp. (Oct. 10, 2008, Ont. S.C.J., Smith J., File No. 06-084) Order No. 008/301/107 (13 pp.). Family Law DOMESTIC CONTRACTS Default divorce judgment set aside Application by husband to set aside default judgment. Divorce judgment incorporated terms of minutes of settlement. Husband claimed that he was not aware of terms of minutes of settlement until he received copy of divorce judgment in mail. Application granted. It was ordered that de- fault divorce judgment be set aside with respect to property and sup- port, and minutes of settlement be set aside. Husband did not un- derstand significance of petition for divorce and consequences of failing to deliver answer. Husband was also unaware of nature and consequences of minutes of settle- ment upon signing. Parker v. Parker (Oct. 17, 2008, January 26, 2009 • Law Times Ont. S.C.J., Shaw J., File No. FS-07-0395) Order No. 008/301/110 (26 pp.). SUPPORT Father was intentionally unemployed or underemployed In child custody and support case filed by mother, father agreed to pay child support. Parties thereafter reconciled. When parties separated again, mother filed statement of arrears. Father brought motion to expunge arrears and reduce ongo- ing child support obligation due to health concerns that rendered him unable to work for long periods. Father claimed that as his health continued to deteriorate he only made enough for bills and medi- cine and came to rely on financial support from siblings. Mother on other hand claimed that father had huge savings stashed in other parts of world and that he was employ- able with his many skills but chose not to work. Motion dismissed. Evidence disclosed that despite health issues, father had inten- tionally placed himself in position of being unemployed or under- employed to suit own purposes. He also appeared to have set up his personal and financial affairs to be "judgment-proof". Court found that father was not subject to undue hardship that served as impediment to ability to honour support obligation. Grala v. Grala (Oct. 31, 2008, Ont. C.J., Clark J., File No. 1913/99) Order No. 008/316/090 (11 pp.). Injunctions MANDATORY INJUNCTION No error in denial of order requiring respondents to proceed to arbitration Appellants and respondents were parties to standard form Canadian Construction Documents Com- mittee Stipulated Price Contract for construction of school. Dispute arose concerning delay in comple- tion of contract and respondents issued notice of default and ter- minated contract. Appellant un- successfully attempted to invoke dispute resolution provisions of contract providing for mediation and arbitration. Appellant then commenced current action for damages and claimed interlocuto- ry mandatory order or specific per- formance requiring respondents to proceed to mediation and modi- fied form of arbitration previously agreed to and interlocutory injunc- tion restraining respondents from engaging third party to complete construction. Motions judge made no error in denying mandatory or- der requiring respondents to pro- ceed to arbitration. Appellant had claimed relief against respondents beyond scope of what was identi- fied in agreement as being arbi- trable and involved several other parties who were not contractually bound by arbitration clause. Penn-Co Construction Canada (2003) Ltd. v. Constance Lake First Nation (Nov. 12, 2008, Ont. C.A., Rosenberg, Sharpe and Blair JJ.A., File No. C48409) Appeal from 161 A.C.W.S. (3d) 14, 66 C.L.R. (3d) 78 dismissed. Order No. 008/323/038 (3 pp.). Limitations DISCOVERABILITY Discoverability not a live issue for trial

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